Broomhall v National Roads and Motoring Association Insurance Ltd
[2004] VSC 344
•15 September 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No.4819 of 2002
| BRIAN BROOMHALL | Plaintiff |
| v | |
| NATIONAL ROADS AND MOTORING ASSOCIATION INSURANCE LTD | Defendant |
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JUDGE: | SMITH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2004, 2 and 3 August 2004 | |
DATE OF JUDGMENT: | 15 September 2004 | |
CASE MAY BE CITED AS: | Broomhall v National Roads and Motoring Association Insurance Ltd | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 344 | |
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Negligence – personal injuries – assessment of damages – partial loss of earning capacity – effect of moving home location in earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Elliott QC and Mr R Dyer | Kenyons Lawyers |
| For the Defendant | Mr D Kendall QC and Miss A Magee | Sparke Helmore |
HIS HONOUR:
The Claim
The plaintiff, Brian Broomhall, seeks compensation for injuries and loss and damage resulting from a collision on 3 February 1999 on the Great Alpine Road near Cobungra in the State of Victoria. On that day, he was riding a motorcycle which came into collision with a motorcycle ridden by John William Russell. Mr Russell died in the incident. Mr Russell had attempted to pass a truck while negotiating a left-hand bend. His motorcycle veered across into the path of the plaintiff's motorcycle. Mr Broomhall, in an attempt to avoid a collision, turned to his right with the result that he was struck on his left-hand side by Mr Russell's motorcycle. In the circumstances, it is not surprising that liability has been acknowledged. What is in dispute is the assessment of damages.
I note that the defendant has provided to the plaintiff a serious injury certificate in accordance with a section 93 of the Transport Accident Act 1986 (the Act).
Injuries alleged
The plaintiff in his statement of claim alleges that he has suffered the following injuries as a result of the collision:
• traumatic amputation of the great left toe and part of the left forefoot;
• severe traumatic fracture injury to the left foot, knee and lower leg;
• fractures to the left 1-4 ribs with underlying pulmonary contusions;
• penetrating and degloving injury to left knee requiring skin graft;
•production, aggravation, exacerbation, acceleration or deterioration of degenerative changes within the left knee joint;
•multiple fracture dislocations of the left tarso-metatarsal joints requiring open reduction and internal fixation;
• skin grafting;
• development of infection;
• instability;
• pain, weakness and loss of function of the left foot, knee and leg;
• cosmetic deformity and scarring of the left foot;
• abnormal gait;
•production, aggravation, exacerbation, acceleration or deterioration of degenerative changes in the lower back;
• persisting lower back pain and loss of function;
• nervous shock and anxiety;
• pain and suffering.
Damages Claimed
In his statement of claim, the plaintiff sought general damages for pain and suffering and loss of enjoyment of life, past and future. He also pleaded the following special damages.
(a) Past economic loss
He claimed an amount of $119,782 representing loss of earnings from 1 August 2000[1] to 28 July 2004. He also claimed compensation in excess of $15,000 for the loss of the benefit of employer funded superannuation contributions from September 2000.
(b) Future economic loss
He claimed an amount of $380,215 as compensation for future economic loss based upon his restriction in earning capacity. He also claimed compensation for the loss of future superannuation contributions estimated at $56,000.
[1]The relevant date 18 months following the happening of the accident as required by the Act.
The plaintiff
The plaintiff was born on 15 September 1965. At the time of the incident he was a little over 33 years of age. He is now nearly 39 years of age.
The plaintiff left school at the start of year 12. He described himself as an average student. On leaving school he obtained employment at Tecoma at a petrol station as a driveway attendant and assisted the mechanic. He worked there for about 12 months and then bought a tractor and equipment to carry out slashing for the City of Knox and the Shire of Sherbrooke for a season (about six months). For about the next two years, he worked for a wholesale florist, putting flower orders together and ultimately driving trucks to the Victoria Market to deliver flowers. He then went to work for Motyaj Potteries in about 1984 . He initially worked there as a storeman picking orders and loading trucks. He continued there until about 1987 and then spent about 12 months with a grain store in Cranbourne. In that job he was driving trucks and doing deliveries. He was contacted by the manager of Motyaj Potteries who asked him if he was interested in coming back to help deal with problems in the warehouse. He took up the offer and worked for Motyaj Potteries from 1988 for 1996. Initially he worked as the warehouse manager for about 2 to 2½ years. He described that job as a hands-on position - obtaining the orders from a secretary, or invoices, and picking the stores and loading and re-loading the trucks. In about 1991, he was offered, and took up, the position of sales executive.
The job of sales executive involved a lot of driving all over Victoria and to South Australia. It required him to call in at garden centres and Bunnings stores. At garden centres he would try to sell new products and service their stocks. At the Bunnings stores, he essentially went there to top up their stock. He used to organise these journeys into areas. He would visit nine to ten nurseries in the country in a day and some 11 or 12 in Metropolitan Melbourne. He was paid a base salary and commission.
He continued in that job until 1996. He then became unhappy with the aggressive nature of the management of the company and left the company. After about a nine week period, he was contacted by the general manager by telephone and asked to return. He did so and was working in the position of sales executive at the time of the motorcycle accident.
Following the accident, he was very keen to get back to work and did so, in late July 1999. He enjoyed the work because of its direct contact with customers. His return was graduated and he built up the hours and days. He started by working in the office answering the telephone. He was "not there with computers". He also did some telesales. After about five weeks (about October 1999) he was back to working full-time and resumed the position of sales executive. He found this difficult because every time he put weight on his foot, getting out of the car or getting into the car, he felt severe pain in the top of the foot and ankle. He described it as being like "a knife being stuck right through the middle of my foot". His wife said that the pain was increasing and he was “extra grumpy and . . . his patience was really thin.” This was occurring 10 to 12 times a day and it wore him down. He resigned in September 2000.
At the time of the incident, he was married with two children . He and his wife married in 1990. Their children are Jay and Dillon - aged 16 and 10 respectively. He and his family were living in a house owned by his wife's parents at Upwey. In late 1999 they moved to live in a house they owned on Phillip Island.
At Phillip Island he tried to get into the building industry as a sub-contractor with a builder and pursued that aim for approximately two months. But he said it was evident that he would not be able to cope physically with full-time work. He gave it away. He began a handyman business. It started with him doing some painting in about January 2001 and gradually the work increased as a result of word of mouth and a modest distribution of flyers in the Cowes area. He now does a variety of handyman and maintenance tasks including looking after some gardens, painting, minor carpentry, fixing washers on taps and so on. He has found, however, that his foot becomes very sore and fatigued after about four hours of activity. He becomes extremely frustrated that he cannot work full-time. For financial reasons, he has pushed himself harder on occasions but he has suffered the consequences at the end of the day and overnight - really sharp pain, swelling of the foot, very irritable mood and restricted sleep.
In organising his handyman work, he goes to the site and assesses the cost of what he has been asked to do. His wife does all the bookkeeping and paperwork. He writes out a quotation on a sheet of a pad and his wife types up a quotation on the computer. Similarly, he records the hours of work actually done and his wife records the information on to a job sheet in the computer. His equipment includes a ride on mower, ladders and eight foot scaffolding. He has done one or two jobs at Inverloch. Otherwise his work is predominantly on Phillip Island.
Mr Broomhall is someone who has greatly enjoyed sport. It was a major part of his life. He played a lot of racket sports including tennis and badminton and had played competitive squash at a high level. He also enjoyed bush walking, golf and riding motorbikes in the scrub. Prior to the accident, he used to run long distances several times a week and did weight training during his competitive squash years. At about the age of 18 or 19 he became very serious about his squash but thereafter he played squash socially. Prior to the accident, he used to visit his friend Mr Jones in Benalla and they would go for a run or ride bicycles. He has tried to play golf since he was injured but it was very difficult and very painful. He found that he could only cope with one hole. He has given up his membership of his golf club.
He used to go bush walking quite often with his wife and two sons. At least two or three times a year they would go camping in a national park. While they still go camping he cannot walk any distance. His two sons play football and his elder son plays cricket. He tries to kick a football with them but that put a lot of stress on his foot. He tries also to participate in their cricket but he is very limited in what he can do.
The plaintiff's injuries and medical history
He recalls the motorcycle coming towards him, his attempt to veer between it and the truck and being hit on the left side of his body. He slid across the road losing consciousness. When he recovered consciousness, he went through a check of the various parts of his body. He was in considerable pain in his ribs and had trouble breathing. He saw the actual knee of his left leg and that his left boot was completely destroyed. He dragged himself to the side of the road and lay there for about an hour to an hour and a half until the ambulance arrived. He was then examined, in the course of which he was told that he had lost his big toe. He was placed in the ambulance and taken to a helicopter which flew him to the Alfred Hospital.
On arrival, he was examined. He was described as having suffered a traumatic amputation of the left great toe, multiple fracture dislocations of the left tarso-metatarsal joints, a penetrating injury to the left knee with an overlying degloving injury and fractures of left sided ribs 1 to 4 with underlying pulmonary contusions. He was placed in intensive care and operated on. On 3 February 1999 the wounds were debrided, the left knee wound being lavaged, and the fracture dislocations of the left tarso-metatarsal dealt with by K-wires which were placed in the foot. The purpose was to hold the bones in position. They were subsequently removed. A split skin graft was also performed on the foot and a skin graft performed on the knee. On 6 February 1999 a split skin graft was applied to the wound at the site of the left great toe. The skin for the grafts was taken from his left thigh. He remained in the Intensive Care Unit for three days.
He remained in the hospital until 17 February 1999. He remembered being in a lot of pain, particularly in the ribs, and receiving considerable quantities of morphine while in intensive care. He was discharged to the Victorian Rehabilitation Centre in Mount Waverley as an in-patient. He was confined to a wheelchair. He continued as an out-patient from 3 March 1999.
At home, a district nurse came daily to change the dressings on his left foot. This was necessary because the skin grafts wounds were still open. It became apparent after a week that the skin grafts were not getting any better and he was again admitted to the Alfred Hospital for further skin grafts on 11 March 1999. The wounds were debrided and new split skin grafts applied. A K-wire was removed from the foot. The wounds improved with a combination of rest, elevation and antibiotics. He remained in the Alfred Hospital until 23 March 1999. He continued with his rehabilitation at the Centre and had physiotherapy. Once the wounds healed he had physiotherapy in water.
On about 21 April 1999 he was given a rocker boot. The foot was still very tender. The boot had very soft sides and enabled him to put weight through the foot in a rocking motion as opposed to bending the foot. Prior to this, there had been no weight bearing by the left foot. Unfortunately, the day after he put on the rocker boot for the first time, he started to get extreme swelling and redness in the left foot . The following morning when he got out of bed and put his foot down, it "basically exploded". He said “muck and blood blew out of the side” of his foot. He rang a doctor at the Alfred Hospital and was re-admitted. He was told he had a golden staff infection in the foot and was prescribed antibiotics via a drip. He had a high temperature and was feeling very ill. On this occasion he remained at the Alfred hospital until 30 April 1999. He remained on antibiotics for a total of 10 weeks.
He continued attending the Victorian Rehabilitation Centre and gradually got back to work, as noted above, towards the end of July 1999. He gradually increased his hours of work, as outlined above, until he returned to full-time employment as a sales executive. During this time he was seeing a specialist, Mr Edwards. He was having difficulty with recurrent ulcerations under the base of the big toe. This was associated with ongoing pain related to the first metatarsal head which was becoming worse. In his report of his examination at the time, Mr Edwards noted the following:
“At examination he had a very much thickened callosity underlying his first metatarsal head which on 25/7/00 had minimal ulceration. There were significantly damaged soft tissues. The mid foot was essentially rigid but non-tender.”
In evidence, Mr Edwards said that there was very thickened soft tissue underlying the first metatarsal head resulting from local damage and, in his view, recurrent abrasion because of bony prominences. It was decided that an operation was needed. The operation was carried out on 27 September 2000. The operation involved the cutting of a tendon which he considered was pulling the metatarsal down and causing pressure. Mr Edwards also shaved the bulk of the lateral sesamoid and cut out some bone to reduce the bulk of the first metatarsal head.
Before the operation took place, the plaintiff resigned from his position at the pottery. He said that he had gone as far as he could with the ongoing pain through the day but it was getting worse and by lunchtime he was physically exhausted. He was struggling through each day. He was also concerned about the amount of time he had had off work with the accident and did not think it was fair to the company to continue. Following the operation he was off the foot for approximately a month. He and his wife moved to Phillip Island at the end of the year.
Mr Edwards reviewed the plaintiff’s condition on 22 August 2001. On that occasion he recorded that the plaintiff told him that he had a constant background of aching pain with intermittent knife like pain centred more in his mid and hind foot. He was told that it woke the plaintiff from time to time. The pain was aggravated by walking particularly on rough ground and standing also could caused problems. He told Mr Edwards that his maximum walking distance was two kilometres. He said that he limped and had swelling. He spoke of some crepitus of his ankle and stiffness of the mid foot. He referred to numbness of the dorsum of his foot. He was using innersoles which were of significant benefit. Examination of the foot revealed limitation of dorsi-flexion and plantar-flexion. The sub-talar joint was mobile but relatively stiff. There was still some thick callosity underlying the first metatarsal head but much less. The lesser toe joints were relatively stiff. Recent x-rays showed very significant degenerative change of the tarso-metatarsal joints and slight malunion of a fracture of the third metatarsal.
It appears to be common ground between the parties that the degenerative change revealed in the bones in the foot will ultimately require either an arthrodesis (the view of Mr Edwards) or (according to Mr King, who does not have a positive view about the success of such an operation) an amputation when the arthritic condition becomes too bad. Mr Edwards’ view is that he is likely to require a tarso-metatarsal and inter-tarsal arthrodesis. The aim of such an operation is to stiffen the foot and address the pain.
It also appears to be common ground that as a result of the accident the plaintiff’s left knee is unstable with some posterior cruciate ligament laxity. As a result of that instability and the loss of substance of the skin over the front of his knee joint he cannot kneel on his left knee. In addition, there is evidence of osteoarthritic change in the left knee attributable to the incident.[2]
[2]Reports of Dr Baker and Mr Jones tendered by the defendant.
Twelve months after the incident he began to experience back pain. It is now persistent lower back pain and it worsens with prolonged standing, bending or lifting. He now cannot sit for more than an hour or an hour and a half. It is common ground this problem exists and is connected with the injury.
Not surprisingly there have been psychological consequences. On 16 October 2001 he was seen by Dr Michael Epstein a psychiatrist. He obtained a complete history of the matter and assessed the plaintiff’s current condition. Amongst other things he noted that the plaintiff ruminated about the accident on most days and was upset with reminders of it including from the pain and scarring on his left foot. He gets upset seeing motorcycles ridden carelessly. He had become more careful about safety and security for himself and his family, checking and rechecking that doors and windows are locked. He was described as being jumpy and on edge and easily startled. He was also described as frustrated, restless, impatient, irritable, lonely, isolated, exhausted and agitated. He also felt at times hopeless, helpless, useless and more emotional. His self-esteem and self-confidence have been reduced. He was said to be more difficult to live with and his concentration was more limited by fatigue. Thoughts of the accident interfered with his memory. Dr Epstein expressed the opinion that the accident was associated with the development of some symptoms of a mild Post Traumatic Stress Disorder. This had settled to some degree but he was left with ongoing symptoms including recurrent intrusive thoughts about the accident, distress with reminders of it, increased concerns with regard to his own safety and security and that of his family, hypo-vigilance, some emotional withdrawal and a sense of bleakness. His opinion was also that the combination of the physical and psychiatric effects of the accident had resulted in the development of a mild Adjustment Disorder with depressed mood. He also commented that his quality of life had diminished affecting “his relationships, his work capacity and recreational enjoyment”.
Dr Epstein examined him again on 17 October 2003. On this occasion he concluded that the Adjustment Disorder with depressed mood may have worsened a little and concluded that his psychiatric impairment arising from the accident of 10% had increased to 15% of which 5% related to an impairment from the residual symptoms of his Post Traumatic Stress Disorder. He commented:
“His quality of life remains diminished.”
Mr Broomhall's foot is not a pretty sight. Apart from the absence of the big toe, there are dark patches on top of the foot and around the base of the big toe which are the skin grafts. There is a callous build up which he has removed every fortnight by a podiatrist. Dark patches also show skin grafting in the area to the front and side of patella area of the knee which was degloved. He has very little feeling through it. At present he experiences pain in the top section of the foot and on the outside and below the ankle. He takes Panadeine Fortė when the pain becomes very severe.
When he goes to the beach, people notice his injuries and ask about what happened. He does not like this partly because he does not like reliving the incident. He still, however, thinks about it regularly and he cringes when he sees bike riders without safety gear. The death of Mr Russell still distresses him. The pain he experiences at the end of the day makes him fairly short at times with his family and his temper tends to flare a little. He cannot cope with the noise his sons make. On days when he pushes himself to work longer hours, his lack of patience and his temper is worse.
Prior to the incident he would go out at night either for sporting activities or with his wife. Now he rarely goes out at night and his wife has to plan well in advance if she is to persuade him to go out. When he comes home he retires to his “beer in the shed”. On most nights, he returns to the house when his wife comes home. He was someone who was very active, driven and liked to get things done. Since the incident he had had to hold himself back. His friend Mr Jones spoke of their painting his farmhouse at Benalla in 2 ½ days working 18 hours a day prior to the accident. About three years ago, the plaintiff went to Benalla to help paint the exterior of the farmhouse. After 7 days they still were not finished because they could not put the hours in. He described the plaintiff as being in a lot of pain.
The Parties’ Positions on Damages.
The plaintiff’s counsel submitted that $200,000 would be an appropriate sum to compensate the plaintiff for past and future pain, suffering and loss of enjoyment of life. His counsel referred in particular to the injuries suffered, the subsequent medical problems and medical procedures and ongoing problems. As to the future, Counsel emphasised the medical evidence of the likelihood of pain associated with osteoarthritis reaching a point in the next five to twenty years where an arthrodesis would have to be undergone or, on the evidence of Mr King, an amputation take place.
The defendant conceded that serious physical injuries had been suffered together with a mild psychiatric condition and accepted that in the future it was likely that surgery, probably an arthrodesis, would be required to deal with osteoarthritic change. Counsel suggested that the fair way to look at that issue was to consider that it might occur sometime in the next 10 to 15 years when the plaintiff is aged somewhere between 49 and 54. Counsel submitted that a sum of $125,000 would provide appropriate compensation.
As to economic loss, counsel for the plaintiff submitted that past economic loss should be assessed on the basis of $108,894 for loss of past earnings and $19,890 for lost superannuation contributions - making a total of $128,784 for past economic loss.
As to future economic loss, the plaintiff submitted that its assessment be made by assuming the plaintiff would have worked to age 65 and assuming that he will in fact, maintain his handyman business to that age, in which he presently earns about $6000 per annum. The weekly loss of earnings from his salary at the time of the collision was $703.80. Deducting his handyman earnings produces a net weekly loss of $590.09 which produces a figure of $402,153 for future economic loss. It is common ground that the appropriate figure for the present value of lost contributions to superannuation is $50,000. Allowing say a 15 percent reduction for the vicissitudes of life, counsel for the plaintiff argued that a figure of $ 350,000 for future economic loss was reasonable.
The defendant conceded that Mr Russell's wrongdoing had caused injuries to the plaintiff that prevented him carrying out his pre-accident employment. It conceded that the plaintiff had lost some capacity to earn but argued that the issue was when that occurred and the length of its occurrence and the degree of that loss of capacity.
The defendant submitted that on the evidence, past economic loss should only be allowed for a six-month period following the operation that occurred towards the end of 2000, resulting in a figure of $ 15,553 for lost income and $1600 for lost superannuation contributions over that same period. For the future, the defendant submitted that, on the evidence, the probabilities were that the plaintiff would not have worked beyond 60 years and the agreed multiplier on that scenario was 634.5. It applied that multiplier to a net weekly loss of $703.80. The defendant argues, however, that the plaintiff's reduced earning capacity should be assessed somewhere in the region of 33 percent. On that basis, after a reduction of 15 percent for vicissitudes of life, the defendant arrives at a figure for loss of earning capacity for the future of $125,258. Using the agreed amount of $50,000 as the lost superannuation contributions, Counsel for the defendant submitted that the appropriate figure would be one-third of that, namely, $16,500.
Finally, Counsel for the plaintiff submitted that the above figures of $200,000 general damages, $128,784 for past economic loss and $350,000 for future economic loss added together provided a reasonable global figure for damages. Counsel for the defendant did not nominate a global figure and I infer that they would invite adoption of the figure arrived at by adding together the amounts nominated by them.
General Damages - analysis
The plaintiff is almost 39 years of age. He has suffered considerable pain over the last five years from the injuries he suffered and the surgical procedures and infections. The pain has varied in frequency and intensity but has been a constant severe presence. Mr King, a specialist surgeon, has expressed the opinion that the plaintiff has a “high threshold for pain”. What he meant by that is unclear. My impression is that the plaintiff has a high capacity to endure and cope with the pain that he feels. This pain will continue and will worsen as the osteoarthritis in his foot worsens. Some form of further surgery is inevitable. He is suffering, and will continue to suffer, back pain. He can also expect problems with his left knee to worsen. His foot injuries affect his sleep and are a source of significant embarrassment and a constant painful reminder of what occurred. Significant compensation, in my view, is warranted for the pain and suffering the plaintiff has and will suffer.
He has also suffered a significant diminution in the quality of his life. He was someone for whom an active sporting life was very important. He greatly enjoyed it. He can no longer engage in it. He cannot participate, as most fathers can, in the sporting activities of his two sons. If he does try to participate he experiences extreme pain. He has lost the satisfaction of full-time employment in work that he enjoyed and has had to live with that and will have to live with that fact for the rest of his life. Generally, the incident has also affected him psychologically so that he is irritable and depressed significantly more than he would have been in ordinary circumstances. At the same time, allowance must be made for the possibility so far as the future is concerned of similar and other issues arising. Some allowance must also be made for the future consequences associated with an arthrodesis or amputation somewhere between the next 5 to 20 years.
General damages are always difficult to assess and views will differ. Counsel for the plaintiff submitted that $200,000 would be an appropriate sum, counsel for the defendant submitted the appropriate sum was $125,000. I consider the figures suggested by the defendant to be significantly below that which should be awarded. I will resist the temptation, however, to split the difference between the two amounts. I consider the $200,000 figure a little too high and have arrived, rightly or wrongly, at a figure of $180,000 for past and future pain, suffering and loss of enjoyment of life.
Lost Earning Capacity - submissions
As noted above, the defendant has conceded that Mr Russell's wrongdoing has caused injuries that have prevented the plaintiff pursuing his pre-accident employment.
Counsel for the plaintiff submitted that a loss of earning capacity as a result of the injuries having been established, the plaintiff is entitled to damages for such loss. In assessing these damages, counsel submitted that it was necessary to look at the man and what he was. He had been a very good sales executive and enjoyed the work. It was put that, while Mr Broomhall had frankly conceded that he could in a physical sense perform sedentary work such as clerical work, his work experience and temperament meant that he was not a clerical worker, not someone suited to working in an office. Counsel went so far as to submit that having regard to his work history, Mr Broomhall would find office life intolerable. In any event, counsel submitted that there was no evidence that there was sedentary work available on Phillip Island, Upwey or in Melbourne for a man who left school at the start of year 12, who would require extensive retraining, was close to 40 with serious injuries including back pain and was likely to have to undergo further serious surgery in the not too distant future. Counsel further submitted that there was no proper basis for departing from the evidence of the plaintiff that he had intended to work to 65 years.
Counsel for the defendant submitted that the real cause of the plaintiff's inability to obtain alternative employment arose from the decision to choose a different lifestyle - described as a "sea change" - and the making of a choice to do what he liked to do rather than do what he should do and, in particular, a deliberate choice not to pursue sedentary type employment. Counsel submitted that the plaintiff’s primary consideration should be attempting to obtain appropriate remuneration from suitable and appropriate work and the defendant should not be called upon to support a lifestyle.
On the issue of whether he could do less demanding work, counsel referred to the plaintiff’s experts. Counsel noted that Mr Edwards said in cross-examination that the plaintiff would be restricted to sedentary work with limited walking distance. Mr Hadj, he said, had expressed the view that the plaintiff could do his maintenance work because he was able to regulate his hours and the type of work but was silent as to any other opinion. Counsel also referred to Mr King’s view that the plaintiff was permanently unfit for any sort of manual work which involved constant standing, walking, bending or squatting and permanently unfit for his old job. Counsel also referred to his second report where he expressed concerns about whether the plaintiff would be able to continue with his handyman work.
Counsel then referred to the report of the defendant’s expert, Dr Baker, a specialist in occupational medicine. He expressed the view that the plaintiff was not capable of returning to his pre-accident employment and was not capable of conducting his maintenance work full-time. He stated, however, that the plaintiff could work longer hours in a different role, such as a sales clerk, or in administrative work where he could move about at will and spend most of his time at a desk. He expressed the view that in that position there was no reason why the plaintiff should not be able to work full time. Finally, counsel for the defendant referred to Mr Jones, an orthopaedic surgeon, who expressed the opinion that the plaintiff was working as a handyman to the limit of his capacity but if he changed to work less demanding on his left foot he would be able to work on a full time basis. Counsel submitted that it should be found that:
“. . . the plaintiff was capable of obtaining appropriate suitably remunerative work in the past. He is capable of pursuing it at the moment and will be so capable for some distinct period into the future.”
Counsel submitted that it all came back to the issue of the primacy given to lifestyle which was the major consideration that had been taken into account by Mr and Mrs Broomhall.
Relying on the discussion on the issue of burden of proof in Luntz, “Assessment of Damages for Personal Injury and Death”,[3] counsel for the defendant submitted that the legal onus of proof rested on the plaintiff to establish that he was unfit and that here the plaintiff had acted unreasonably in not seeking suitable full time work.
[3]Para 1.9.0 to 1.9.22.
Counsel for the defendant submitted that alternative employment was a reality in this case for a number of reasons. He referred to the plaintiff’s excellent past work record and engaging personality. Counsel relied also upon a glowing reference written by the general manager of Motyaj Potteries. Counsel submitted that there is no reason why the plaintiff could not work at a desk in a job which gave him flexibility to stand, sit or move when he needed to or wanted to and that the plaintiff had conceded that in cross-examination. Counsel submitted that it was no excuse for not seeking appropriate employment to say that he lacked knowledge of computers. It would be a simple matter to be re-trained and it was unreasonable that he did not re-train and unreasonable that he had not pursued alternative employment. Counsel submitted that the plaintiff's situation resulted from
•a deliberate choice to work as a handyman for limited hours because he preferred that type of work, and
•the fact that he had moved, for reasons of lifestyle, from Upwey to Phillip Island, an area with fewer job opportunities.
Counsel submitted that the plaintiff had not, therefore, demonstrated an inability to work full-time in appropriate work in the past, present or the future save and except for a period, which the defendant conceded, of six months covering the operation in late 2000 and his convalescence. As to the future, counsel conceded that some allowance needed to be made for a suitable period of unemployment during the likely future surgery somewhere between his 49th and 54th year. Finally, as to the future, counsel submitted that bearing in mind the lifestyle wishes of the plaintiff, it was unlikely that he would want to work to 65, his children having left school, and that it was more likely that he would give up work “in the region of 55”. It was proposed, however, to advance figures calculated on the basis that he would work until he was 60.
In response, counsel for the plaintiff submitted that the defendant’s concession that the plaintiff’s injuries had prevented him pursuing his pre-accident employment had the result that the starting position as to damages was that the plaintiff’s livelihood as a sales executive, a job at which he was very good and which he loved and had done for a number of years, had been destroyed by the negligence of the defendant. Counsel for the plaintiff also submitted that the defendant’s submissions were wrong in law and, in particular, wrong in relation to the effect of the absence of evidence for the defendant. Also, relying upon Luntz,[4] counsel for the plaintiff drew attention to the following passage
[4]Assessment of Damages For Personal Injury and Death, Fourth Edition, Paragraph 1.9.20.
“. . . the ultimate onus of proving that incapacity is due to the defendant’s negligence and not a pre-existing condition rests on the plaintiff.[5] Once this onus is satisfied, it is not necessary for the plaintiff also to satisfy the Court of the extent of the loss, in the sense of proving what employment the plaintiff is not incapacated from performing; a defendant who contends that the plaintiff has a residual capacity has at least an evidentary onus of adducing evidence of what the plaintiff is capable of performing and what jobs are open to a person with such residual capacity.”[6]
[5]Citing Purkess v Crittenden (1965) 114 CLR 164.
[6]The learned author cites many cases for the latter proposition. Of particular relevance is Baird v Roberts [1977] 2 NSWLR 389 (CA) where a defendant alleging that a plaintiff could follow a sedentary occupation did not adduce evidence about the kind of work the plaintiff was able to do, the likelihood he could obtain it and what remuneration such work would produce.
Counsel for the plaintiff submitted that the defendant had failed to produce such evidence. Counsel went on to refer to further passages from the same text, in particular the following:
“It is true that the plaintiff who maintains that all work capacity has been lost runs a risk that in the absence of evidence from the plaintiff the Court will over value any residual capacity it finds; but a court is not precluded from making an award for loss of earning capacity because it finds that there is some residual capacity and the plaintiff has not adduced evidence of what could be earned by someone with such a limited capacity.[7] In such circumstances, the Court must do its best to value the actual loss to the plaintiff from whatever evidence it has or its own knowledge of earnings in occupations it finds are still open to the plaintiff.[8]”
Counsel also referred to the next passage in the text where views of the Court in Linsell v Robson[9] are considered. Counsel relied particularly on the summary of the view of Glass JA that:
“. . . though the legal onus rests on the plaintiff, a defendant who remains silent in the face of a plaintiff’s attempt to prove a negative runs the risk that the plaintiff’s legal materials will be sufficient to justify the conclusion that the plaintiff had only a severely restricted earning capacity left.”
Asked what additional evidence the defence should have led, counsel referred to the case of Woodhead & Anor v Barrow[10] a decision of the then Full Court of the Supreme Court of Victoria and in particular to the comments of Eames J which were said to be apposite to the present case. The plaintiff in that case suffered a very serious back injury at the age of 16 and was left with a chronic disability of moderate severity. Reference was made in particular to the following passage:
“The employment which it was suggested she might engage in was said to be clerical work or secretarial. The jury were entitled to regard it as of special significance that no evidence was called by the appellants to suggest that she could, indeed, perform such work or that there was any work available in the labour market to a person with her disabilities. There was an evidential burden cast on the appellants to produce such evidence, given that the plaintiff had established a prima facie basis for concluding that she was likely to remain unemployable in the future.[11]”
[7]Citing by way of example Dessent v Commonwealth of Australia (1977) 13 ALR 437 at 447 and other cases.
[8]Citing inter alia State of New South Wales v Moss [2000] NSWCA 133, especially per Heydon JA para [64] ff.
[9][1976] 1 NSWLR 249.
[10](1993) Aust Torts Reports 81-238.
[11]At 62469.
Counsel submitted that the defendant's case about the plaintiff having a residual earning capacity was hinted at and fenced at and the defendant had failed to discharge the evidentiary onus. Counsel submitted that it was not enough to produce evidence of a capacity to do certain work. He submitted that the case of Woodhead v Barrow supported that argument. Counsel submitted that there was no evidence produced by the defendant about what suitable or appropriate jobs were available, what the duties would be, where they were available, whether retraining was necessary and how long it would be and what were the wages and salaries for such jobs. Counsel submitted that evidence could have been called by the defendant from the former employer as to whether it would offer a job and from other employers or from a vocational expert and evidence could have been given by persons involved in rehabilitation services. Counsel also submitted that none of the relevant authorities had offered the plaintiff rehabilitation services to retrain him for more suitable employment.
Counsel then addressed the defendant’s argument that Mr Broomhall had been unreasonable in leaving Upwey and not pursuing other suitable employment. Counsel referred to authority on the question of onus of proof where a job has been offered within the work capacity of the plaintiff but refused for other reasons. In Adams v AscotIron Foundry Pty Ltd,[12] Walsh J stated:
“If, however, it is admitted or found that he had the capacity to do the work, it will only be in rare cases that a question whether nevertheless it was reasonable for him to refuse it will arise. But, if it does arise, in my opinion, the onus of proof on that question lies upon the defendant.
For example, if a plaintiff with a back injury has been offered a job requiring only light work, but claims that he refused it, with or without a trial period, because, in doing it, he suffered or would suffer disabling pain, the onus is on the plaintiff. But, if the job which has been offered is at Milparinka and the plaintiff and his family, including children attending a high school, have their home in Sydney, and he will not take it because he is unwilling to go and live in such a place, the onus is on the defendant on the question whether or not his refusal is unreasonable.”
That decision was cited with approval by Wells J in Atkinson v Murray.[13] There the plaintiff had worked as a linesman for Telecom prior to being injured. His injuries rendered him incapable of performing the work of a linesman and he had been offered alternative employment as a clerical assistant. The plaintiff refused this offer. Wells J held that the refusal was not unreasonable. While the plaintiff was physically and intellectually capable of performing clerical work, his Honour said that the plaintiff was one of the:
“. . . not inconsiderable number of men and women in the community [who] possessed temperaments in virtue of which they would find that the working life spent within the confines of an office would prove so oppressive as to be intolerable.”
[12](1968) 72 SR (NSW) 120 at 139
[13](Unreported) Supreme Court of South Australia 6 September 1983 cited in the Australian Torts Report 22,543.
As to the decision to move to Phillip Island, counsel submitted first that there was no evidence that would enable a comparison of the availability of suitable employment from Upwey as opposed to that of suitable employment from Phillip Island. Further, counsel submitted that the plaintiff was not a clerical worker and not an office worker. In addition, an employer was going to be loath to engage someone with an injury such as the plaintiff where it was clear that in a number of years there was going to have to be some further operation, possibly as extreme as an amputation. He also referred to the plaintiff’s age of approximately 40 and the problem facing such a person who was untrained competing with younger people with computer experience which he did not have.
As to the reasonableness of the decision to move to Phillip Island, counsel submitted that what the defendant was saying was that the plaintiff should have abandoned the long-term plan that he and his wife had developed in about 1995 to move to Phillip Island because they saw it as a better place to bring up their children than the Upwey region. Counsel submitted that the defendant was in effect saying that that plan should have been abandoned to minimise damages payable by it. This plan had been developed before the accident and a decision in principle made. The accident merely focussed his and his wife’s minds on their priorities and brought the move forward. Counsel submitted that if the issue was simply one of a change of lifestyle, the plaintiff would not have attempted to resume employment in 1999 with Motyaj Pottery. The plan was, after moving to Phillip Island, to remain in the same employment but this was abandoned principally because of his injuries and their consequences. Counsel submitted that the plaintiff was entitled to choose where he wished to live particularly where that choice had been made before the accident. Counsel submitted that the onus was on the defendant to prove that what the plaintiff did was not reasonable. Counsel argued that the plaintiff had acted reasonably in all the circumstances. Counsel also submitted that in effect the defendant was seeking to dictate the plaintiff’s life in that the defendant was arguing that the plaintiff could not go and live where he wished to live because of the injuries he has suffered as a result of the wrong doing of Mr Russell because to do so decreased his opportunities of finding alternative suitable work. Counsel submitted that if the plaintiff had done what the defendant’s counsel argued and stayed in Upway and abandoned the plan to go to Phillip Island and found employment in a clerical office and was utterly miserable, that would be compensible as general damages. He conceded that the amount would be substantially less than that claimed for lost earning capacity.
Counsel submitted that the plaintiff was a man who had got on with his life and was doing work, work that he enjoyed, in spite of the pain he endured and should not be condemned for that.
Lost earning capacity - analysis
The starting point is the common ground that the plaintiff has suffered a loss of earning capacity as a result of his injuries and that he has a residual physical capacity to do clerical work subject to the freedom to move where necessary and such physical capacity would probably extend to full time employment in the right conditions.
The defendant has led no evidence, however, about;
• what suitable or appropriate jobs were available,
• how many there were,
•what the duties and conditions would be and whether they would be suitable for the plaintiff,
• where they were available,
• the nature of training necessary for them,
• their permanency or otherwise, and
• what wages and benefits would be payable.
The only evidence available to suggest there is paying work that the plaintiff could actually do is the evidence supplied by him because he created paying work for himself on Phillip Island. This may be said to support the conclusion that he is capable of doing limited light physical work provided he has the flexibility to choose the hours he works and how he works them.
The lack of an evidentiary base defeats the attempt by the defendant to argue that the plaintiff has an earning capacity of the nature alleged – that is to earn income full-time in a clerical occupation. The only evidence before the Court is that he has a physical capacity to do that type of work. There is no evidence available to support the other critical aspects relevant to earning capacity. Further, such evidence as there is suggests that it is unrealistic to think that the plaintiff would be able to obtain or retain such work. It is true that he has had a good work record and personality and that would stand him in good stead. But it is clear that he is quite ill-suited to office work and any prospective employer would realise that. Thus, he would for that reason alone not be a first choice by any employer. Added to that, he is now approaching 40 and lacks computer skills and lacks the temperament for computer work, paper work and office work. Any employer would have to contemplate retraining him. His leg injuries and back pain and the reality of major surgery in the future would be a further discouragement to any employer. The evidence of these matters raises the strong inference that it is unlikely that he would be able to obtain or retain clerical work if he sought it. The absence, without explanation, of any supporting evidence from the defendant, evidence that would ordinarily be obtainable, strengthens that inference.
I am also persuaded, in any event, that it would be unreasonable for the reasons advanced by Justice Wells to require someone like the plaintiff to engage in such work and, if offered, it would be reasonable for him to refuse it. I am satisfied he would find it intolerable.
For the foregoing reasons, damages for lost earning capacity should be assessed on the basis that the plaintiff’s injuries have left him with only a residual capacity to earn income in the manner that he had organised on Phillip Island.
I turn to the defendant’s argument that the loss in earning capacity is the result of the “sea change” move to Phillip Island and that the move to Phillip Island was unreasonable. The first difficulty with this argument is that the relevant comparison cannot be made; namely, a comparison of the work that would have been available to him in and from Upwey compared with the work that would have been available to him in and from Phillip Island. There is no evidentiary basis on which to make such a comparison.
Were it to be the case that the moving to Phillip Island did in fact reduce his ability to obtain employment which would place him in a better financial position than the employment he has created, it is, strictly speaking, for the defendant to establish that such action was unreasonable. In my view, it was not unreasonable because the plaintiff and his wife were simply carrying out a decision they had made for the sake of their family prior to the collision, a decision in existence at that time. I would go further and say that in my view it was reasonable to do so. In addition, it has helped to mitigate the loss of enjoyment of life flowing from the injury.
Turning to quantum and the issue of past economic loss, the defendant’s position is unreasonable. The plaintiff’s assessment, however, addresses the realities and should be accepted.
Turning to future economic loss, the net figure of $402,153 calculated by counsel for the plaintiff is in fact a little over 80% of the sum that would have been arrived at assuming a total loss of earning capacity.[14] I note that it is favourable to the defendant in that it assumes that the plaintiff will continue to carry on his handyman business to age 65 and do so without interruption notwithstanding his disabilities. Applying a 15% reduction[15] for the vicissitude of life to the sum of $452,153 (the combined present value of the loss of net income plus superannuation contributions) produces a figure of $384,330.05. The 15% figure is reasonable, it having been the figure adopted by both parties. The amount now sought of $350,000 is a reasonable figure for that head of damages in the circumstances I have outlined above.
[14]$479,840.
[15]The 15% figure is reasonable, it having been the figure adopted by both parties. The usual adverse visisitudes are present.
Conclusion
An amount of $180,000 would provide reasonable compensation to the plaintiff for past and future pain and suffering and loss of enjoyment of life. A sum of $128,784 would be reasonable compensation for past economic loss. As to future economic loss, I am persuaded that the figure now claimed of $350,000 would be reasonable compensation. Added together the figures total $658,784. Considered globally, I have come to the conclusion that a fair and reasonable award of damages to the plaintiff would be $650,000.
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